SUPREME COURT.

Gisborne Times, Volume XIX, Issue 1557, 13 September 1905, Page 3

SUPREME COURT.

CIVIL CASES.

‘A DISPUTED SHEEP DEAL.

A case .of considerable interest to sheepfarmers was heard at the Supremo Court yesterday, before His Honor Mr Justice Edwards. The pliantiff, Groacon Joseph Blaok, aheopfarmor, of Gisborne, sued William Tombloson, sheepfarmer, of Waimaia, for the recovery of the sum of £777 10s 6d for the alleged non-delivery of sheep. Dr Findlay, instructed by Mr J, W. Nolan, appeared for the plaintiff, and Messrs DoLautoUr ’and Stock for the defendant. The plaintiff contended that the defendants, by his agents, the New Zoaland Loan and Mercantile, Co., agreed with the complainant to sell and deliver to the plaintiff 1500 ewes, or thereabouts, on the 14th of June, and ..that the plaintiff agreed to pay for the said ewes at the rate of 16s per head, also 180 ewe hoggets at 11s. The plaintiff estimated the profits which Would have accrued to him from from I the said delivery at the sum of £322 10s, being at the rate of 4s for each | ewe and 2s 6d for each hogget. Plaintiff also claimed £450 as damages for the losses on the lambs and wool for the ensuing season. j The plaintiff, Groacen Joseph Black, in his evidence stated G. J. Blaok, sheepfarmer, stated he had 7000 acres freehold, and sinoe February had been looking out for sheep to stock his farm. About the beginning of June the agent told witness that they had a good lino of 1500 ewes for sale belonging lo Mr Tombleson. They were two to sight-tooth. Witueaa replied he would go and see them. They appointed a day, bat It rained for some time. On the first fine day, June 12th, witness wont out with Mr Faulkner, the Company’s agent, to see the sheep in the defendant’s yards, at Waimala. Witness bought them and told the drovers to take them to Pakowbai, witness' place. Ho was to take delivery at Waimata. The ewes were heavy In lamb, and wore lo start lambing about

the middle of July. Witness contracted for the sheep at 18s, to be delivered about the 14tb. Ho also purchased hoggets. The lioau Company’s agent said there were 200 hoggets for sale at lls 6d. There were some small ones, and witness said if 20 were thrown out he would take them. The agent, Mr Faulkner, said he oould not . do that without seeing the owner. Witness eamo back to town with Faulkner, who the same evening rang witness up on the telephone, and said : " Mr Tombleaoij will agree to let you throw 29 of the f hoggets out." Witness agreed to take them on these terms. Faulkner said nothing abont the ewes. Subsequently defendant refused to deliver the Bhoep. He fohnd out who bought the sheep from defendant, and instructed an agent to offer 18s 6d for them, but this was refused. If he bad bought the ewes he would have had the lambs, which he intended to fatten,, He'expected 90 to 100 per oent of iambs, and ewe and lamb together a flock like that would be worth 28s. Saoh sheep would clip about oight or nine pounds of wool, which would have been worth lOd. If the oontraot had been carried out by weaning time he would have made £1123 and still have the 1500 . sheep. His Honor was surprised at such pro* fits, Dr Findlay: Bheepfarming is more profitable than law. His Honor: I daresay it is. It is wonderful that Tombleson gives up this gold mine. J Dr Findlay! He has another in the • south. He is only shifting from one bonanza to another. (Laughter.) Witness said the sheep out of the wool Would be only worth 12s. Witness was considerably understocked, baying only . five or six .thousand instead of eight or nine. He sent his sou. to get delivery of the hoggets.' They were supposed ti be , ewes, but amoDgst them was a line of 40 ' or 50 wethers in the 250 defendant had al- a together. In the open market now these , hoggets would fetch IBs 6d. Of the small lots that witness had bought subsequently - he had paid 20s 6d for a lino of btohonmonthed sheep not to be compared with Tomblesou’e, " J ■ By Mr DeLautonr: Whan witness bought the sheep he knew they belonged to Tombleson. Witness mads no inquiry as to Faulkner’s right to sell the Bheep. On the 14th he heard delivery had been HiUßod> .. Mr DeLautour: Did Mr Bright tell you that you oould have 'the sheep at valuation ? „ Wilnesa: No, he did not. He read me a letter from your firm. Mr DeLautour: Did you not know before the sheep were sold to Mr ChristoY pher yjat you oould have had them at !' valuation ? , . . , u Witness: No; I only know what the latter stated—that I was entitled to the first ohanco of them. I_ had already bought them once, and I did not want to buy them again. Mr DeLautour; Two months previously yon had shipped swea to Obrjstohuroh ? Witness:; I shipped 700 by the eteamer Storm. Mr DeLautour: And when you were

iUyiog ewea did you make enquiries oi he various commercial' houses in uis> lorno ? .. . 3 t Witness: I watched the papers, and 1 iltended the sales. I had instructed Maray, Roborts to buy ior me, and Dalgety rod 00, knew that I was a buyer. Witness was cross-examined at some angth in regard to the profits be expeoted is the outcome of the deal. He estimated ibe percentage of ewes lost in lambing at Ji. Ho had been asked to place his half iroßobrod wool under offer looally at 9id per lb, and bad refused to do so. Mr DeLautour: Who asked you to do BO ? Witness : I decline to state. His Honor! lam not going to ask you Who it was, but if you do not state I shall take no notice of the matter. Witness: It was a reputable firm. His Honor : That will not do me. : Witness: It would be disposing bustn*His Honor : I bave nothing to do with that. lam conducting this Court, and I know my business, or think I do. j.o a can tako i*, Mr DeLautour, that I shall entirely disregard it. j In answer to further questions witness | said that In Juno last ho considered he had lost over 4s per head oo the ewes through non-delivery, and more than the sum stated by way of profit?. Ho estimated bis shearing expenses at 2£d per shoep. ; Mr DoLauteur: What is your grass Worth per bead ? Witness: That depends on what you Lave on it. It is worth noting to me. His Honor : His answer is good; he could get nothing to put on it, so therefore it is worth nothiDg to him. (Laughter.) George Irving Falkner, stock agent for the New Zealand Loan Co., Gisborne, stated that he knew- both the

Slaintiff and defendant. The defenant put 250 hoggets into his hands for sale, and on Monday, May 22nd, he inspected the sheep. Arrangements for the purchase of the sheep on bo. half of Dr Cole came to nought, de fendant 'stating his inability to come out. In course of conversation witness asked defendant if he had any ewes for sale, and was informed that he had upwards of 1600. Witness asked how he could see the sheep, and was told that he could see them at Waimata in defendant’s',yards. Defendant promised to let Mr Young, who was in charge, know that witness was coming us. Th» note made at the time was as follows :. .“ 22nd May—l7so ewes and wethers, two, four, six, and eight tooth Komney and Border Leicester, lCi. . ..Young in charge.” Witness had put them under offer to Mr Black, subject to seeing them;. On June 12th they went up to see the ,t sheep. Witness met Mr Tombleson at the Gisborne Club during the interval . pnd defendant stated that as the place W&9 sold All the sheep bad to be cleared

off. Witness replied that Mr Black did not want the hoggets but ho would . arrange for someone else to take them. ! On Juno 12tk the sale of the sheep was made to the plaintiff. Witness made out a salo note binding tho plaintiff to take the shoep. This was done in the presence of defendant's manager. I Returning to town witnoss mot Mr Tombleson at the corner of the Masonic Hotel and reported to him that tho owes had been sold to Mr Blaok. Witness said that plaintiff would take tho 200 hoggets at 11s Gd with tho right To throw out twenty. Defendant askod what ho was to do with the culls, and witness replied that Young would take them. Defendant agreed to dispose of tho hoggets at the price mentioned, I and the sale was reported to Mr Blaok. Witness did not know what .Mr Blaok wanted tho sheep for. Plaintiff told him that he intended to tako the sheep to Pakowai, and witness was aware that this was one of his runs. Mr Nolan : What did Mr Tombleson say to you when you returned. Witness : He said that “ the fat was in the fire, that Christopher had returned and refused to tako the rams unless he got the sheep.” Mr Nolan .* Did you say anj thing else.

Witness : I said to Mr Tombleson, “|how do we l stand. Has Mr Christopher gotjanyjhold on the sheep ?” Defendant replied, “none whatever.” It was then the deal was concluded, defendant also agreeing to sell the hog, gets to Mr Black. i By Mr Stock : When he made a note of the sheep for sale he did not ask defendant to sign it. The present was his first position as a stock agent, but not his first deal in sheep. It was quite reasonable that defendant should take 163 without seeing the sheep. Many stationholders throughout the district were guided by the opinions of their managers. The defendant did not say that he would not sell the ewes but simply that he did not want any sheep left on the place [as it had been sold. Defendant did not give him a price for the hoggets as these were already on the firm’s books. Defendant did not stipulate that the ewes, wethers and hoggets 1 should be sold to ono man, nor did he j say that he would have to go up and confirm any arrangement made in regard to the sheep. Witness visited defendant’s place some days after the occasion of his first visit to see the defendant about some of the ewes which were on an adjoining property at the Waimata, and these he wanted to get into the general mob. Witness did not tell Mr Tombleson that Mr Christopher was after the sheep and that he must hurry up and sell them. He told Mr DeLautour that the deal had been hanging for some ttme, and he would have to hurry it up. In conversation with the defendant at the Poverty Bay Club witness told him that Mr Black was going up to look at the sheep. His Honor : And did he say that he wanted more money for them. Wttness : No, Your Honor. To Mr Nolan : It was not the custom amongst stock agents to have their selling orders signed by the sellers.

A. S. "Wachsmann, auctioneer, and acting manager for Dalgety and 00., stated he had seen Tombleson’s sheep. He valued the sheep in June last at 18s 6d. The ewe hoggets were worth 13s then. On June 26th he was instructed to make an offer of 18s 6d for the ewes. The offer was declined. Witness was instructed by plaintiff to buy sheep of this class and was trying to get them throughout the district. He was unable to get any at an offer worth considering. Sheep of this class were offered at £l, and a guinea between the 14th of J une and the 14th July. He could have got 1600 ewes in lamb as good a 3 these were in July for that sum. The price was so high that -witnooo regarded rUe oner ao a •joke.

By Mr DeLautour : He had no sales recorded about that time of this class of sheep at 18s 6d. They -were being sold for that sum, but inferior sheep and in small lots. It would be a -poor quality of ewes that could be had at 12s, 13s and 15s in May. Witness saw the sheep on the Waimata property 0.0. tlie Ist instant afcer they had lambed. They were a rice class of sheep. Sales of ewe hoggets were being made at the time for 13s. After June 14th the ewes and hoggets rose in value every week. The riae in ewes commenced about the middle of July, close to lambing ewes would rise a shilling a month, The only other | agent he went to was Mr Kells. Witness would, buy wool at 9 Jd* That included everything that went through the table. An average mob of ewes should clip from 81b to 9lb. By Dr Findlay : If he were asked to get 1500 breeding ewes at the lowest possible piice he would have stipulated for a month to get them in. T L. Perry, sheepfarmer, Waimata, stated that Mr Tombleson’s former property adjoined his land in Waimata. Ho had seen the ewes in contest there in June last, witness valued them at 18s 6d. Bailey’s sheep sold about the Ist of July were a similar lot, and wore sold for £l. By Mr DeLautour: Ha did not know how many full-mouthed ewes there were in the 1500 sheep. A fresh full mouth was worth neary as muoh as a young sheep. Last season fresh fall-mouthed ewes brought nearly as much as four ana six-tooth ewes. He thought Mr Wylhe should be a competent judge of sheep. In Bailey's sale the purchaser bought both land and sheep. By Dr Findlay: There was a separate price for the land and for the sheep. Howard Kenway, shoepfasmer, Waimata,stated he bought the whole of the stock that was on Tombleeon’s Waimata run. He took the stock over from Mr Christophers’ about June. The ewes were valued at 16s 6d, and the hoggets ati 12s 9i. The hoggets were mostly ewes. Witness oaid Mr Christophers a substantial inorease on what he had paid Tombleson for the property and slock. He valued i the ewes all 18a 6d and the hoggets at 13s. He remembered Blaok and Faulkner going up to see’ the sheep. Witness undertook to take over the wethers. The pick of the owe hoggets would be worthies 6d, The owes did not lamb well. Witness would not sell now as he oould not replace them. By Mr DeLautour: He estimated the percentage of lambs at 80. The valuation of the sheep was made by Kells and Wvllie alter the dispute bad arisen wnb Mr Black. He thought thei sheep were undervalued. Witness would have given 18s or 18s 6d for them. A. B. Bine, stock agent for Murray Roberta, stated that the ewes in the market in June last were worth 17s 6d then. At the present time they woulu be worth from £1 to 21s 6d. He allowed ,75 per cent, of lambs. The hoggßts in June would be worth 18s to 18s 6d. After the 14th of June witness made no effort to get breeding ewes for plaintiff, as at that time ewes in large numbers oould not be had, unless at fanoy prioes. By His Honor : II there was no limit to price there would be no difficulty in obtain* iog ewes, He would have bought them as cheap as he and charged his commission. Eoberl Q. Black, son ,of defendant, stated that he was Bent to take delivery of the sheep from Tombleson. Witness was [ to select 180 from 200, but Christophers re* fused to let witness have them. There were about 240 in the mob, and Christphers said witness would have to tako the lot oi none. Witness refused to take them. Christophers and the shepherd in, his employ were the only persons witness bbw there. Christophers rang up Bomeone, and it was after that he refused to give ’delivery.

| By Mr DoLsutour; Ho was instructed I to run 20 off tho 200. I By His Honor: Witnoss would havo I rejected all but 180 of the 240, and would have done bo .if Christophers would‘'have lot him. I By Dr. Findlay : Witnoss’ instructions woro to got owo hoggets only. There woro about 80 wothors amongst tho 240 hoggets, so that thoro were only a littlo ovor 200 owe hoggets altogether. This concluded tho ovldonco for tho dofoueo.

I Mr DeLnutour submitted that thoro was no ovidoaoo to show that Christophers was I noting for Tombloson. [Regarding tho I owes defendant’s case wiY3 ono of denial of I authority. If His Honor hold that thoro I had boon a contraot for sale it would bo I oontonded that thoro woro no damages, J and that plaintiff could havo got other I shesp to replaoo those ho had lost ; I further, that plaintiff had boon told by Mr Bright that ho could buy tho sheep at a i valuation. His Honor intimated that tho offor to give plaintiff tho sheep at a valuation did I not do away with the claim for damage I for non-delivery. He was satisfied that plaintiff could havo got sheep by paying a higher prioo.

Wm. Tombleaon, defendant, Btatod that Faulkner onllod on him on 220 d May. Witness Btated that the Btook on the Wal* mata property were for sale, and gave par* tioulara of the sheep- Witness said ihoro were only a few hoggets. Witness said he did not know what he wonted for the ewes and wethers, os he had not been up to soo them for some timo. He said they were worth 16s. Faulkner said he thought he could place them. He did not know what entry Faulkner had made in his book. They met later in town, nnd Faulkner said he had a man who wanted to look at the shoep. Mr Blaok would be passing on a certain day, and wanted the sheep to bo in tho yards. Witness Baid the sheep would bo in tho yards shortly for crutohing, and it was arranged that Mr Blaok was to ride through the sheep on his way from Arakihi, and if satisfied they wore all to go up when the shoep were yarded and see if they could moke a deal. Witness said the wethers would have to be counted with the ewos. On tho 12th June Faulkner said he had sold all witnose's sheep, and witness stated that ho would not agreo to the sale. Faulkner expressed regret, and said he thought he was making a good sale for witness. Be also said that plaintiff would take the hoggets with the exception of 80 culls. Witness agreed to the sale of the hoggets, and tho rams could go at <6l. The ewes and wethers he would not let go at 16s. By Dr Findlay: Witness wanted to sell his farm and stock. On May 2d a deposit had been paid and an agreement signed for the sale of the place by Mr Christophers, who was not in Gisborne when the sale was made. On Monday Juno 12 Christophers told witness ho did not want 1 the plaoe without the stock; he wonld sooner give it np, Christophers backed out of the agreement, but afterwards took tho plaoe with the stock. Witness consulted Mr DeLautour after his conversation with Faulkner on the 18th os to whether he had committed himself to anybody, Dr Findlay: To whom ? Witness : To Black or Christophers. Dr Findlay : I( Mr Black had agreed to tako the stock at a valuation, do you think it would have relieved him of his right to sue for damages ? Witness said that ho was under no obligation to Bell Mr Blaok the shoep, but he would sell them at a valuation. Witness could not prevent Mr Black suing him. It was quite possible that on May 22nd Faulkner told witness that ewes were Belling at 16s. Witness said that, judging from the culls that had come down, bis sheep were worth 16s. Fanlker said he ooold place them. He saw Faulkner writing in his book, bat be did not read the entry to witness. The entry was Dot correct, as witness had said there might be some old sheep, but he did not know how many. The statement in defendant’s plea regarding defendant’s offer of tho sheep at 16s, subjeot to him seeing him, was inoorreot,

you bad agreed to the sale of the ewe hoggets, did not mention the fact that yon bad repudiated the sale of the owes? Witoeas said be had agreed to sell the hoggets, bat not tho ewes, Mr DeLautonr: The reason that Christophers bad backed out of tho bargain was because of the title to the land, which was leasehold tenure, J. W. Bright, manager of the New Zoaland Loan and Mercantile Company, stated that after the refasal to complete the sale of tho sheep he had made an offer to Mr Blaok, statiog that he could take the sheep at a valuation which Mr Tomble- I son would have made.

G. R. Wyllie, stock agent and auctioneer, deposed that he had seen the sheep in contest. He valued them for Mr Christophers at 16s 6d for the ewes, 12s 9d for the hoggets, and 16s 9d for the wethers. Witness knew there were 400 old sheep amongst them. Ho thought there were eome 8-year-old ewes. The sheep were very mixed, some of them would be worth £1 and some not 12s. He could have got 1500 sheep at that time in small lots from that valuation up to <£l. The sheep would be worth 6d more at the end of June than in the middle of June.

.By Dr Findlay: Ewes of that class at that time could be got within a month at 18s. They would be hard to get, as people had made their winter arrangements. .By Mr DeLautour: There were 1398 ewes valued at 16s 6d, 253 hoggets at 12s 9d, and 186 wethers at 16s 9d. Dr Findlay : This was not the result of a clean muster. H would not be surprised if the number came to 1500. J. B. Sells, auctioneer and stook agent, stated that he acted as agent for Mr Tombleson in the sale of sheep to Mr Christophers. There was a number of broken mouthed sheep. Tho sheep were mostly Komney cross. Witness’s valuation was 17s 6d for the ewes, 12a 9d for the hoggets aud 18s for tho wethers. Two looal sbeepfarmers were called in as nmpires and the price wbb fixed at ;i6s 6d. Fifteen hnndred sheep of that class could have been got at the time in small lines. Dr Findlay: Sheep oould have been got then at about 18s. He would not undertake to get them.

By His Honor: Ho thought 3d a hood would cover the extra coat of driving in getting sheep in email lots. W. G. Sherratt, of the firm of Bennett and Sberrait, stated that daring the months of Jane and July last he oould have bought breeding ewes in the district at from 18s to 20s. The sheep would have have to be piobed up in small loss. Dr Findlay waived the right to address the Court on the assumption that Mr De Lontour would do likewise. Counsels quoted law in support of their respective cases. His Honor said the cose was properly one for a jury to decide. He had said ho would take the case without a jury and ho had done bo, but had be known there was going to be such a conflict of testimony be would certainly have had a jury. He would probably deliver judgment in the morning.